Homosexuality in India
Prior to 2018, adoption by same-sex couples in India faced significant legal barriers. However, a landmark Supreme Court ruling in the case of Navtej Singh Johar v. Union of India decriminalised homosexuality and affirmed the fundamental rights of LGBTQ+ individuals.
Adoption by Individuals From the LGBTQ+ Community
Section 5 of the Adoption Regulation Act states that no child can be Denied adoption solely on the grounds of the adoptive parents’ sexual orientation. By explicitly prohibiting discrimination based on sexual orientation, Section 5 of the Adoption Regulation Act recognises and upholds the rights of LGBTQ+ individuals and couples to adopt.
Guidelines for Adoption in India as per Central Adoption Resource Authority (Cara)
Eligibility to Adopt
A person in India may adopt:
i) irrespective of his/her marital status,
(ii) irrespective of the number of living biological sons or daughters and
(iii) to a childless couple
How to Adopt?
The prospective adoptive parents shall file an application in Family Court or District Court or City Civil Court, as the case may be. Before issuing an adoption order, the court shall satisfy itself of the various conditions stipulated under section 61 of the Act.
Shabnam Hashmi v. Union of India (2014)
In this case, the Supreme Court addressed the issue of adoption by single parents. The court held that a single person, irrespective of gender, has the right to adopt a child. This judgment broadened the scope of adoption eligibility beyond married couples.
Lakshmi Kant Pandey v. Uoi (1984)
In this case, the Supreme Court of India recognized the principle of the best interests of the child as paramount in adoption cases. The court held that the welfare of the child should be the primary consideration in adoption proceedings.
Gas and Dubois v. France (2012)
In this case, the ECHR found that France violated the European Convention on Human Rights by denying joint adoption rights to a same-sex couple. The court emphasised that different-sex and same-sex couples should have equal access to adoption rights.
There are no laws that explicitly deny adoption by individuals from LGBTQ+ community in india. since homosexuality has been decriminalised, adoption by single parent and by individuals from the community is legally permitted. however, social biases continue to exist and the same must be done away with for individuals from the LGBTQ+ community to be truly able to avail their rights.